As
filed with the Securities and Exchange Commission on August 15, 2023
Registration
No. 333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
Form
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Superior
Drilling Products, Inc.
(Exact
name of registrant as specified in its charter)
| Utah |
|
46-4341605 |
(State
or other jurisdiction
of
incorporation or organization) |
|
(I.R.S.
Employer
Identification
No.) |
1583
South 1700 East
Vernal,
Utah 84078
(435)
789-0594
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
G.
Troy Meier
Chief
Executive Officer
Superior
Drilling Products, Inc.
1583
South 1700 East
Vernal,
Utah 84078
(435)
789-0594
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Kevin
J. Poli
Porter
Hedges LLP
1000
Main Street, 36th Floor
Houston,
Texas 77002
Telephone:
(713) 226-6600
Telecopy:
(713) 228-1331
Approximate
date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ☐
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company and an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| |
Large accelerated filer ☐ |
Accelerated filer ☐ |
| |
Non-accelerated filer ☒ |
Smaller reporting company ☒ |
| |
|
Emerging
growth company ☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date
as the Commission acting pursuant to said Section 8(a), may determine.
The
information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not
soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject
to completion, DATED AUGUST 15, 2023
PROSPECTUS
$20,000,000
Common
Stock
Preferred
Stock
Warrants
Subscription
Rights
Purchase
Contracts
Units
We
may offer from time to time shares of our common stock, preferred stock, warrants, subscription rights, purchase contracts and units
that include any of these securities.
The
aggregate initial offering amount of the securities that we offer will not exceed $20,000,000. We will offer the securities in amounts,
at prices and on terms to be determined at the time of the offering. We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis.
Our
common stock is quoted on the NYSE American under the symbol “SDPI.” The last reported sale price of our common stock on
August 14, 2023 was $1.10 per share.
The
aggregate market value of our outstanding common stock held by non-affiliates was $18,672,740based on 30,397,924 shares of outstanding
common stock as of August 14, 2023, of which approximately 16,975,218 shares were held by non-affiliates, and based on the last reported
sale price of our common stock as noted above. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities
pursuant to this prospectus with a value of more than one-third of the aggregate market value of our common stock held by non-affiliates
in any 12-month period, so long as the aggregate market value of our common stock held by non-affiliates is less than $75,000,000. In
the event that subsequent to the date of this prospectus, the aggregate market value of our outstanding common stock held by non-affiliates
equals or exceeds $75,000,000, then the one-third limitation on sales shall not apply to additional sales made pursuant to this prospectus.
We
will provide the specific terms of the offering in supplements to this prospectus. You should read this prospectus and any supplement
carefully before you invest. This prospectus may not be used to offer and sell our securities unless accompanied by a prospectus supplement.
Investing
in our securities involves significant risks that are described in the “Risk Factors” section beginning on page 4 of this
prospectus.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is , 2023.
Table
of Contents
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “Commission”)
utilizing a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar amount of $20,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain
specific information about the terms of the offering and the offered securities. This prospectus, together with applicable prospectus
supplements, any information incorporated by reference, and any related free writing prospectuses we file with the Commission, includes
all material information relating to these offerings and securities. We may also add, update or change in the prospectus supplement any
of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus, including
without limitation, a discussion of any risk factors or other special considerations that apply to these offerings or securities or the
specific plan of distribution. If there is any inconsistency between the information in this prospectus and a prospectus supplement or
information incorporated by reference having a later date, you should rely on the information in that prospectus supplement or incorporated
information having a later date. We urge you to read carefully this prospectus, any applicable prospectus supplement and any related
free writing prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation
of Certain Documents By Reference,” and the additional information described under the heading “Where You Can Find More Information,”
before buying any of the securities being offered.
You
should rely only on the information we have provided or incorporated by reference in this prospectus, any applicable prospectus supplement
and any related free writing prospectus. We have not authorized anyone to provide you with different information. No dealer, salesperson
or other person is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus.
Neither
the delivery of this prospectus nor any sale made under it implies that there has been no change in our affairs or that the information
in this prospectus is correct as of any date after the date of this prospectus. You should assume that the information in this prospectus,
any applicable prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document
and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or
any sale of a security.
The
registration statement containing this prospectus, including exhibits to the registration statement, provides additional information
about us and the securities offered under this prospectus and any prospectus supplement. We have filed and plan to continue to file other
documents with the Commission that contain information about us and our business. Also, we will file legal documents that control the
terms of the securities offered by this prospectus as exhibits to the reports that we file with the Commission. The registration statement
and other reports can be read at the Commission website or at the Commission offices mentioned under the heading “Where You Can
Find More Information.”
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the
actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those documents as described below under “Where You
Can Find More Information.”
SUPERIOR
DRILLING PRODUCTS, inc.
We
are an innovative drilling and completion tool technology company providing cost saving solutions that drive production efficiencies
for the oil and natural gas drilling industry. Our headquarters and manufacturing operations are located in Vernal, Utah. Our drilling
solutions include the patented Drill-N-Ream® well bore conditioning tool (“Drill-N-Ream tool”) and the patented Strider™
Drill String Oscillation System technology. In addition, the Company is a manufacturer of Drill-N-Ream tools and refurbisher of PDC (polycrystalline
diamond compact) drill bits for a leading oil field services company. We operate a state-of-the-art drill tool fabrication facility,
where we manufacture solutions for the drilling industry, as well as customers’ custom products.
Our
strategy for growth is to leverage our expertise in drill tool technology and precision machining in order to broaden our product offerings
and solutions for the oil and gas industry. We believe through our patented technologies, as well as technologies under development,
that we can offer the oil and gas industry the solutions it demands to improve drilling efficiencies and reduce production costs.
In
December 2020, we successfully obtained ISO 9000 certification and is now qualified to bid on projects in industries outside oil and
gas. We believe that with this certification, and our history of supplying high quality parts to research and development departments
operating in the aerospace industry, we can effectively execute our industry diversification strategy.
As
used in this prospectus, the terms “we,” “us” and “our” mean Superior Drilling Company, Inc., a Utah
corporation, and its subsidiaries and predecessors, unless the context indicates otherwise. Our principal executive office is located
at 1583 South 1700 East, Vernal, Utah 84078, and our phone number is (435) 789-0594.
CAUTIONARY
NOTE REGARDING FORWARD-LOOKING STATEMENTS
The
information discussed in this prospectus, our filings with the Commission and our public releases include “forward-looking statements”
within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Private Securities Litigation Reform Act of 1995 (the
“PSLRA”), or in releases made by the Commission. Such forward-looking statements involve known and unknown risks, uncertainties
and other important factors that could cause the actual results, performance or achievements of us and our subsidiaries to differ materially
from any future results, performance or achievements expressed or implied by such forward-looking statements. Statements that are not
historical fact are forward-looking statements. Forward-looking statements can be identified by, among other things, the use of forward-looking
language, such as the words “plan,” “believe,” “expect,” “anticipate,” “intend,”
“estimate,” “project,” “may,” “will,” “would,” “could,” “should,”
“seeks,” or “scheduled to,” or other similar words, or the negative of these terms or other variations of these
terms or comparable language, or by discussion of strategy or intentions. These cautionary statements are being made pursuant to the
Securities Act, the Exchange Act and the PSLRA with the intention of obtaining the benefits of the “safe harbor” provisions
of such laws.
The
forward-looking statements contained in or incorporated by reference into this prospectus are largely based on our expectations, which
reflect estimates and assumptions made by our management. These estimates and assumptions reflect our best judgment based on currently
known market conditions and other factors. Although we believe such estimates and assumptions to be reasonable, they are inherently uncertain
and involve a number of risks and uncertainties that are beyond our control, including:
| ● | the
volatility of oil and natural gas prices; |
| ● | the
cyclical nature of the oil and gas industry; |
| ● | availability
of financing and access to capital markets; |
| ● | our
reliance on significant customers; |
| ● | consolidation
within our customers’ industries; |
| ● | competitive
products and pricing pressures; |
| ● | our
ability to develop and commercialize new and/or innovative drilling and completion tool technologies; |
| ● | fluctuations
in our operating results; |
| ● | our
dependence on key personnel; |
| ● | costs
and availability of raw materials; |
| ● | our
dependence on third party suppliers; |
| ● | unforeseen
risks in our manufacturing processes; |
| ● | the
need for skilled workers; |
| ● | our
ability to successfully manage our growth strategy; |
| ● | unanticipated
risks associated with, and our ability to integrate, acquisitions; |
| ● | current
and potential governmental regulatory actions in the United States and regulatory actions
and political unrest in other countries, specifically the Middle East region and Eastern
Europe; |
| ● | the
potential impact of the coronavirus, variants of the coronavirus or other major health crises
on our business and results of operations, including the impact to our supply chain; |
| ● | terrorist
threats or acts, war and civil disturbances; |
| ● | our
ability to protect our intellectual property; |
| ● | impact
of environmental matters, including future environmental regulations; |
| ● | implementing
and complying with safety policies; |
| ● | breaches
of security in our information systems and other cybersecurity risks; |
| ● | related
party transactions with our founders; and |
| ● | risks
associated with our common stock. |
Many
of these factors are beyond our ability to control or predict. These factors are not intended to represent a complete list of the general
or specific factors that may affect us.
In
addition, management’s assumptions about future events may prove to be inaccurate. All readers are cautioned that the forward-looking
statements contained in this prospectus and in the documents incorporated by reference into this prospectus are not guarantees of future
performance, and we cannot assure any reader that such statements will be realized or that the forward-looking events and circumstances
will occur. Actual results may differ materially from those anticipated or implied in the forward-looking statements due to factors described
in “Risk Factors” included elsewhere in this prospectus and in the documents that we include in or incorporate by reference
into this prospectus, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, and our subsequent Commission
filings. All forward-looking statements speak only as of the date they are made. We do not intend to update or revise any forward-looking
statements as a result of new information, future events or otherwise, except as required by law. These cautionary statements qualify
all forward-looking statements attributable to us or persons acting on our behalf.
WHERE
YOU CAN FIND MORE INFORMATION
We
are subject to the informational requirements of the Exchange Act and file reports, proxy statements and other information with the Commission
as required by the Exchange Act. These reports, proxy statements and other information can be inspected and copied at the Commission’s
Public Reference room at 100 F Street, N.E., Washington, D.C. 20549. The public may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330. In addition, the Commission maintains an Internet site at www.sec.gov
that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the
Commission. We maintain a website at www.sdpi.com. Information on our website or any other website is not incorporated by reference
into this prospectus and does not constitute part of this prospectus.
We
have filed a registration statement with the Commission on Form S-3 (including any amendments thereto, known as the registration statement)
under the Securities Act with respect to the securities offered hereby. This prospectus does not contain all of the information set forth
in the registration statement and the exhibits and schedules thereto. You may refer to the registration statement and the exhibits and
schedules thereto for more information about the offered securities and us. Statements made in this prospectus regarding the contents
of any contract or document filed as an exhibit to the registration statement are not necessarily complete and, in each instance, reference
is hereby made to the copy of such contract or document so filed. Each such statement is qualified in its entirety by such reference.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
following documents, which have previously been filed by us with the Commission under the Exchange Act, are incorporated herein by reference:
| |
● |
Our
Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 16, 2023 (File No. 001-36453); |
| |
|
|
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● |
Our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2023 and June 30, 2023, filed with the Commission on May 12,
2023 and August 14, 2023 (File No. 001-36453); |
| |
|
|
| |
● |
Our
proxy statement on Schedule 14A filed on June 30, 2023, as amended on June 30, 2023 (File No. 001-36453); and |
| |
|
|
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● |
A
description of our capital stock contained in our Form 8-A filed with the Commission on May 12, 2014 (File No. 001-36453); and |
| |
|
|
| |
● |
Our
Current Reports on Form 8-K, filed with the Commission on January
3, 2023, February
2, 2023, February
17, 2023, March
10, 2023, March
30, 2023, May
15, 2023, May
22, 2023, August
2, 2023, August 11, 2023, and August 14, 2023 (File No. 001-36453) (excluding any information furnished pursuant to Item
2.02 or Item 7.01 of any such Current Report on Form 8-K). |
All
documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (excluding any information furnished pursuant
to Item 2.02 or Item 7.01 on any current report on Form 8-K and any corresponding information furnished under Item 9.01 or included as
an exhibit) after the date of the initial registration statement and prior to the effectiveness of the registration statement and after
the date of this prospectus and prior to the termination of each offering under this prospectus shall be deemed to be incorporated in
this prospectus by reference and to be a part hereof from the date of filing of such documents. Any statement contained herein, or in
a document incorporated or deemed to be incorporated by reference herein, shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this prospectus.
This
prospectus incorporates documents by reference that are not delivered with the prospectus. Copies of these documents, other than the
exhibits to the documents (unless such exhibits are specifically incorporated by reference in such documents), are available upon written
or oral request, at no charge, from us. Requests for such copies should be directed to Superior Drilling Products, Inc., 1583 South 1700
East, Vernal, Utah 84078, Attention: Chief Financial Officer, telephone number: (435) 789-0594.
RISK
FACTORS
An
investment in our securities involves a high degree of risk. You should carefully consider the risk factors and all of the other information
included in, or incorporated by reference into, this prospectus, including those risk factors included in our Annual Report on Form 10-K
for the year ended December 31, 2022, and our subsequent Commission filings, in evaluating an investment in our securities. If any of
these risks were to occur, our business, financial condition or results of operations could be adversely affected. In that case, the
trading price of our securities could decline and you could lose all or part of your investment. When we offer and sell any securities
pursuant to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
USE
OF PROCEEDS
Unless
we inform you otherwise in the prospectus supplement or any pricing supplement, we will use the net proceeds from the sale of the offered
securities for general corporate purposes. These purposes may include capital expenditures, repayment or refinancing of indebtedness,
acquisitions and repurchases and redemptions of securities. Pending any specific application, we may initially invest funds in short-term
marketable securities or apply them to the reduction of indebtedness.
DILUTION
Our
net tangible book value at June 30, 2023 was $0.335 per share of common stock. Net tangible book value per share of common stock is determined
by dividing our tangible net worth, which is tangible assets less liabilities, by the total number of shares of our common stock outstanding.
If we offer shares of our common stock, purchasers of our common stock in that offering may experience immediate dilution in net tangible
book value per share. The prospectus supplement relating to an offering of shares of our common stock will set forth the information
regarding any dilutive effect of that offering.
DESCRIPTION
OF CAPITAL STOCK
The
total number of shares of all classes of stock that we have authority to issue is 120,000,000, consisting of 100,000,000 shares of common
stock, par value $.001 per share, and 20,000,000 shares of preferred stock, par value $.001 per share. We had 30,397,924 shares of common
stock, and no shares of preferred stock, outstanding as of August 14, 2023.
In
the discussion that follows, we have summarized selected provisions of our articles of incorporation and our bylaws relating to our capital
stock. You should read our articles of incorporation and bylaws as currently in effect for more details regarding the provisions we describe
below and for other provisions that may be important to you. We have filed copies of those documents with the SEC, and they are incorporated
by reference as exhibits to the registration statement. Please read “Where You Can Find More Information.”
Common
Stock
Voting
rights. Holders of common stock are entitled to one vote per share on any matter to be voted upon by shareholders. All shares rank
equally as to voting and all other matters. The shares of common stock have no preemptive or conversion rights, no redemption or sinking
fund provisions, are not liable for further call or assessment and are not entitled to cumulative voting rights.
Dividend
rights. For as long as such stock is outstanding, the holders of common stock are entitled to receive ratably any dividends when
and as declared from time to time by our board of directors out of funds legally available for dividends. We currently intend to retain
all future earnings for the operation and expansion of our business and do not anticipate paying cash dividends on the common stock in
the foreseeable future.
Liquidation
rights. Upon a liquidation or dissolution of our company, whether voluntary or involuntary, creditors will be paid before any distribution
to holders of our common stock. After such distribution, holders of common stock are entitled to receive a pro rata distribution per
share of any excess amount.
Preferred
Stock
Our
articles of incorporation authorizes our board of directors, subject to any limitations prescribed by law, without further stockholder
approval, to establish and to issue from time to time one or more classes or series of preferred stock covering up to an aggregate of
20,000,000 shares of preferred stock. Each class or series of preferred stock will cover the number of shares and will have preferences,
voting powers, qualifications and special or relative rights or privileges determined by the board of directors, which may include, among
others, dividend rights, liquidation preferences, voting rights, conversion rights, preemptive rights and redemption rights.
Anti-Takeover
Provisions in Our Articles of Incorporation and Bylaws
Our
articles of Incorporation and bylaws include a number of provisions that may have the effect of encouraging persons considering unsolicited
tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover
attempts. These provisions include the items described below.
Removal
of directors and filling board vacancies. Our bylaws provide that directors may be removed with or without cause by the affirmative
vote of the holders of a majority of the voting power of all the outstanding shares of capital stock entitled to vote generally in the
election of directors voting together as a single class. Furthermore, any vacancy on our board of directors, however occurring, including
a vacancy resulting from an increase in the size of our board, may be filled by the affirmative vote of a majority of the shareholders,
or by a majority of our directors then in office even if less than a quorum.
Meetings
of shareholders. Our bylaws (a) provide that only those matters set forth in the notice of the special meeting may be considered
or acted upon at a special meeting of shareholders, and (b) limit the business that may be conducted at an annual meeting of shareholders
to those matters properly brought before the meeting.
Advance
notice requirements. Our bylaws establish advance notice procedures with regard to shareholder proposals relating to the nomination
of candidates for election as directors or new business to be brought before meetings of our shareholders. These procedures provide that
notice of shareholder proposals must be timely and given in writing to our corporate secretary prior to the meeting at which the action
is to be taken. Generally, to be timely, notice must be received at our principal executive offices not earlier than the close of business
on the 120th day, nor later than the close of business on the 90th day, prior to the first anniversary date of the annual meeting for
the preceding year. The notice must contain certain information specified in the bylaws.
Amendment
to Bylaws and Articles of Incorporation. Except as otherwise required by Utah law, any amendment of our articles of incorporation
must first be approved by a majority of our board of directors and thereafter be approved by a majority vote of the outstanding shares
entitled to vote on the amendment, and a majority of the outstanding shares of each class entitled to vote thereon as a class, except
that the amendment of the provisions relating to shareholder action, directors, indemnification and the amendment of our bylaws and articles
of incorporation must be approved by no less than 66 2/3% of the voting power of all of the shares of capital stock issued and outstanding
and entitled to vote generally in any election of directors, voting together as a single class. Our bylaws may be amended by the affirmative
vote of a majority vote of the directors then in office, subject to certain limitations set forth in the bylaws; and may also be amended
by the affirmative vote of at least a majority of the voting power of all of the shares of capital stock issued and outstanding and entitled
to vote generally in any election of directors, voting together as a single class.
Blank
check preferred stock. The existence of our authorized but unissued shares of preferred stock may enable our board of directors to
make it more difficult or discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest, or otherwise.
For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is
not in the best interests of us or our shareholders, our board of directors could cause shares of preferred stock to be issued without
shareholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed
acquirer or insurgent shareholder or shareholder group. The issuance of shares of preferred stock could decrease the amount of earnings
and assets available for distribution to holders of our common stock or other classes of preferred stock. The issuance may also adversely
affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring, or preventing
a change in control.
Utah
Control Shares Acquisition Act
We
are organized under Utah law. Some provisions of Utah law may delay or prevent a transaction that would cause a change in our control.
Under our articles of incorporation, we have opted that Section 61-6-1, et seq. of the Utah Code Annotated, as amended, an anti-takeover
law commonly referred to as the Control Shares Acquisition Act, will not apply to us.
Other
Provisions of Our Articles of Incorporation and Bylaws
Our
articles of incorporation provides that, subject to the rights of any issued preferred stock, our board of directors will be a staggered
board of directors consisting of different terms designated as Class I, Class II and Class III, respectively. At each annual meeting
of shareholders, directors of the applicable class shall be elected for a full term of three years to succeed the directors of the class
whose terms expire at such annual meeting. We believe that classification of our board of directors will help to assure the continuity
and stability of our business strategies and policies as determined by our board of directors.
Since
there is no cumulative voting in the election of directors, this classified board provision could have the effect of making the replacement
of incumbent directors more time consuming and difficult. At least two annual meetings of shareholders, instead of one, will generally
be required to effect a change in a majority of our board of directors. Thus, the classified board provision could increase the likelihood
that incumbent directors will retain their positions. The staggered terms of directors may delay, defer or prevent a tender offer or
an attempt to change control of us, even though a tender offer or change in control might be believed by our shareholders to be in their
best interest. Pursuant to our articles of incorporation, shares of our preferred stock may be issued from time to time, and the board
of directors is authorized to determine and alter all rights, preferences, privileges, qualifications, limitations and restrictions without
limitation, which could impact the ability to remove directors as currently contemplated.
Ability
of Our Shareholders to Act
Our
bylaws provide that any shareholder or shareholders holding at least 10% of the total voting power may call special shareholders meetings.
Written notice of any special meeting so called shall be given to each shareholder of record entitled to vote at such meeting not less
than 10 or more than 60 days before the date of such meeting, unless otherwise required by law.
Our
bylaws provide that nominations of persons for election to our board of directors may be made at any annual meeting of our shareholders,
or at any special meeting of our shareholders called for the purpose of electing directors, (a) by or at the direction of our board of
directors or (b) by any of our shareholders.
In
addition to any other applicable requirements, for a nomination to be properly brought by a shareholder, such shareholder must have given
timely notice thereof in proper written form to our Secretary. To be timely, a shareholder’s notice must be delivered to or mailed
and received at our principal executive offices (a) in the case of an annual meeting of shareholders, not less than 90 days nor more
than 120 days prior to the anniversary date of the immediately preceding annual meeting of shareholders; provided, however, that if the
annual meeting is called for a date that is not within 30 days before or after such anniversary date, notice by a shareholder in order
to be timely must be so received not later than the close of business on the tenth day following the day on which such notice of the
date of the annual meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first occurs; and
(b) in the case of a special meeting of our shareholders called for the purpose of electing directors, not later than the close of business
on the tenth day following the day on which notice of the date of the special meeting was mailed or public disclosure of the date of
the special meeting was made, whichever first occurs.
Our
bylaws provide that no business may be transacted at any annual meeting of our shareholders, other than business that is either (a) specified
in the notice of meeting given by or at the direction of our board of directors, (b) otherwise properly brought before the annual meeting
by or at the direction of our board of directors or (c) otherwise properly brought by any of our shareholders. In addition to any other
applicable requirements, for business to be properly brought before an annual meeting by a shareholder, such shareholder must have given
timely notice thereof in proper written form to our Secretary. To be timely, a shareholder’s notice must be delivered to or mailed
and received at our principal executive offices not less than 90 days nor more than 120 days prior to the anniversary date of the immediately
preceding annual meeting of shareholders; provided, however, that if the annual meeting is called for a date that is not within 30 days
before or after such anniversary date, notice by a shareholder in order to be timely must be so received not later than the close of
business on the tenth day following the day on which such notice of the date of the annual meeting was mailed or such public disclosure
of the date of the annual meeting was made, whichever first occurs.
Limitations
of Director Liability and Indemnification of Directors, Officers, and Employees
Our
articles of incorporation provide that to the fullest extent permitted by the bylaws or the Utah Revised Business Corporation Act, or
the Act, or any other applicable law, as either may be amended, a director shall have no liability to the us or our shareholders for
monetary damages for conduct, any action taken, or any failure to take any action as a director. As permitted by the Act, directors will
not be personally liable to us or our shareholders for monetary damages as a director except liability for (a) the amount of a financial
benefit received by a director to which he’s not entitled; (b) an intentional infliction of harm on the corporation or its shareholders;
(c) an unlawful distribution in violation of Section 16-10a-842 of the Act; or (d) an intentional violation of criminal law.
These
limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable
remedies, such as an injunction or rescission.
In
addition, our bylaws provide that:
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we
will indemnify our directors to the fullest extent permitted by the Act, including advancing expenses in connection with legal proceedings,
subject to limited exceptions; |
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the
corporation may, to the extent permitted by the Act, by action of its board of directors, agree to indemnify officers, employees
and other agents of the corporation and may advance expenses to such persons. |
We
have entered into indemnification agreements with each of our executive officers and directors. These agreements provide that, subject
to limited exceptions and among other things, we will indemnify each of our executive officers and directors to the fullest extent permitted
by law and advance expenses to each indemnity in connection with any proceeding in which a right to indemnification is available.
We
also maintain general liability insurance that covers certain liabilities of our directors and officers arising out of claims based on
acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers, or persons who control our company, we have
been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is therefore unenforceable.
These
provisions may discourage shareholders from bringing a lawsuit against our directors for breach of their fiduciary duty, or may have
the practical effect in some cases of eliminating our shareholders’ ability to collect monetary damages from our directors and
executive officers. These provisions may also have the effect of reducing the likelihood of derivative litigation against directors and
officers, even though such an action, if successful, might otherwise benefit us and our shareholders. Furthermore, a shareholder’s
investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant
to these indemnification provisions. We believe that these provisions, the indemnification agreements and the insurance are necessary
to attract and retain talented and experienced directors and officers.
At
present, there is no pending litigation or proceeding involving any of our directors or officers where indemnification will be required
or permitted. We are not aware of any threatened litigation or proceedings that might result in a claim for such indemnification.
Listing
Our
common stock is listed for quotation on the NYSE American under the symbol “SDPI.”
Transfer
Agent and Registrar
VStock
Transfer is transfer agent and registrar for our common stock.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase common stock, preferred stock, purchase contracts or units that are registered pursuant to the registration
statement to which this prospectus relates. We may issue warrants independently or together with other securities that are registered
pursuant to the registration statement to which this prospectus relates. Warrants sold with other securities may be attached to or separate
from the other securities. We will issue each series of warrants under a separate warrant agreement between us and a warrant agent that
we will name in the prospectus supplement. We will describe additional terms of the warrants and the applicable warrant agreements in
the applicable prospectus supplement.
General
If
warrants are offered, the prospectus supplement relating to a series of warrants will include the specific terms of the warrants, including:
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the
offering price; |
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the
title of the warrants; |
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the
aggregate number of warrants offered; |
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the
dates or periods during which the warrants can be exercised; |
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whether
the warrants will be issued in individual certificates to holders or in the form of global securities held by a depositary on behalf
of holders; |
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the
designation and terms of any securities with which the warrants are issued; |
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if
the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security
will be separately transferable; |
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if
the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise
price is denominated; |
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any
terms, procedures and limitations relating to the transferability, exchange or exercise of the warrants; |
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any
special tax implications of the warrants or their exercise; |
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any
anti-dilution provisions of the warrants; |
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any
redemption or call provisions applicable to the warrants; and |
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any
other terms of the warrants. |
Transfers
and Exchanges
A
holder will be able to exchange warrant certificates for new warrant certificates of different denominations, or to transfer warrants,
at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to exercise, holders
of warrants will have none of the rights of holders of the underlying securities.
Exercise
Holders
will be able to exercise warrants up to 5:00 P.M. New York City time on the date set forth in the prospectus supplement as the expiration
date.
After
this time, unless we have extended the expiration date, the unexercised warrants will be void.
Subject
to any restrictions and additional requirements that may be set forth in a prospectus supplement, holders of warrants may exercise them
by delivering to the warrant agent at its corporate trust office the following:
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warrant
certificates properly completed; and |
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payment
of the exercise price. |
As
soon as practicable after the delivery, we will issue and deliver to the indicated holder the securities purchasable upon exercise. If
a holder does not exercise all the warrants represented by a particular certificate, we will also issue a new certificate for the remaining
number of warrants.
No
Rights of Security Holder Prior to Exercise
Prior
to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon
the exercise of the warrants, and will not be entitled to, in the case of warrants to purchase equity securities, the right to vote or
to receive dividend payments or similar distributions on the securities purchasable upon exercise.
Enforceability
of Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the relevant warrant agreement and will not assume any obligation or relationship of
agency or trust for any warrant holder. A single bank or trust company may act as warrant agent for more than one issue of warrants.
A warrant agent will have no duty or responsibility if we default in performing our obligations under the relevant warrant agreement
or warrant, including any duty or responsibility to initiate any legal proceedings or to make any demand upon us.
Title
We
and the warrant agents and any of our respective agents may treat the registered holder of any warrant certificate as the absolute owner
of the warrants evidenced by that certificate for any purpose and as the person entitled to exercise the rights attaching to the warrants
so requested, despite any notice to the contrary.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We
may issue subscription rights to purchase common stock, preferred stock, warrants, other securities described in this prospectus or any
combination thereof. These subscription rights may be issued independently or together with any other security offered by us and may
or may not be transferable by the security holder receiving the subscription rights in such offering. In connection with any offering
of subscription rights, we may enter into a standby arrangement with one or more underwriters or other investors pursuant to which the
underwriters or other investors may be required to purchase any securities remaining unsubscribed for after such offering.
To
the extent appropriate, the applicable prospectus supplement will describe the specific terms of the subscription rights to purchase
shares of our securities offered thereby, including the following:
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the
date of determining the security holders entitled to the subscription rights distribution; |
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the
price, if any, for the subscription rights; |
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the
exercise price payable for the common stock, preferred stock, depositary shares or other securities upon the exercise of the subscription
right; |
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the
number of subscription rights issued to each security holder; |
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the
amount of common stock, preferred stock, depositary shares or other securities that may be purchased per each subscription right; |
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any
provisions for adjustment of the amount of securities receivable upon exercise of the subscription rights or of the exercise price
of the subscription rights; |
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the
extent to which the subscription rights are transferable; |
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the
date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
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the
extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities; |
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the
material terms of any standby underwriting or purchase arrangement entered into by us in connection with the offering of subscription
rights; |
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any
applicable federal income tax considerations; and |
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any
other terms of the subscription rights, including the terms, procedures and limitations relating to the transferability, exchange
and exercise of the subscription rights. |
DESCRIPTION
OF PURCHASE CONTRACTS
We
may issue purchase contracts obligating holders to purchase from us, and us to sell to the holders, a specified number, or amount, of
securities at a future date or dates. The purchase contracts may be issued separately or as part of units consisting of a purchase contract
and an underlying security covered by this prospectus, U.S. Treasury security or other U.S. government or agency obligation. The holder
of the unit may be required to pledge the security, U.S. Treasury security or other U.S. government or agency obligation to secure its
obligations under the purchase contract.
If
purchase contracts are offered, the prospectus supplement will specify the material terms of the purchase contracts, the units and any
applicable pledge or depository arrangements, including one or more of the following:
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the
stated amount that a holder will be obligated to pay under the purchase contract in order to purchase the underlying security; |
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the
settlement date or dates on which the holder will be obligated to purchase the underlying security and whether the occurrence of
any events may cause the settlement date to occur on an earlier date and the terms on which any early settlement would occur; |
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the
events, if any, that will cause our obligations and the obligations of the holder under the purchase contract to terminate; |
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the
settlement rate, which is a number that, when multiplied by the stated amount of a purchase contract, determines the number, or amount,
of securities that we will be obligated to sell and a holder will be obligated to purchase under that purchase contract upon payment
of the stated amount of that purchase contract; |
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whether
the purchase contracts will be issued separately or as part of units consisting of a purchase contract and an underlying security
with an aggregate principal amount or liquidation amount equal to the stated amount; |
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the
type of security, if any, that is pledged by the holder to secure its obligations under a purchase contract; |
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the
terms of the pledge arrangement relating to the security, including the terms on which distributions or payments of interest and
principal on the security will be retained by a collateral agent, delivered to us or be distributed to the holder; and |
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the
amount of the contract fee, if any, that may be payable by us to the holder or by the holder to us, the date or dates on which the
contract fee will be payable and the extent to which we or the holder, as applicable, may defer payment of the contract fee on those
payment dates. |
DESCRIPTION
OF UNITS
As
specified in the applicable prospectus supplement, we may issue units consisting of one or more shares of common stock, preferred stock,
warrants, subscription rights, purchase contracts, or any combination of such securities. The applicable prospectus supplement will describe:
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the
securities comprising the units, including whether and under what circumstances the securities comprising the units may be separately
traded; |
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the
terms and conditions applicable to the units, including a description of the terms of any applicable unit agreement governing the
units; and |
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a
description of the provisions for the payment, settlement, transfer or exchange of the units. |
GLOBAL
SECURITIES
We
may issue the warrants, purchase contracts and units of any series in the form of one or more fully registered global securities that
will be deposited with a depositary or with a nominee for a depositary and registered in the name of the depositary or its nominee. In
that case, one or more global securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate
principal or face amount of outstanding registered securities of the series to be represented by such global securities. Unless and until
the depositary exchanges a global security in whole for securities in definitive registered form, the global security may not be transferred
except as a whole by the depositary to a nominee of the depositary or by a nominee of the depositary to the depositary or another nominee
of the depositary or by the depositary or any of its nominees to a successor of the depositary or a nominee of such successor.
The
specific terms of the depositary arrangement with respect to any portion of a series of securities to be represented by a global security
will be described in the prospectus supplement relating to such series. We anticipate that the following provisions will apply to all
depositary arrangements.
Ownership
of beneficial interests in a global security will be limited to persons that have accounts with the depositary for such global security
known as “participants” or persons that may hold interests through such participants.
Upon
the issuance of a global security, the depositary for such global security will credit, on its book-entry registration and transfer system,
the participants’ accounts with the respective principal or face amounts of the securities represented by the global security beneficially
owned by the participants. The accounts to be credited shall be designated by any dealers, underwriters or agents participating in the
distribution of such securities.
Ownership
of beneficial interests in such global security will be shown on, and the transfer of such ownership interests will be effected only
through, records maintained by the depositary for such global security (with respect to interests of participants) and on the records
of participants (with respect to interests of persons holding through participants). The laws of some states may require that certain
purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability
to own, transfer or pledge beneficial interests in global securities.
So
long as the depositary for a global security, or its nominee, is the registered owner of such global security, such depositary or such
nominee, as the case may be, will be considered the sole owner or holder of the securities represented by such global security for all
purposes under the applicable indenture, warrant agreement, purchase contract or unit agreement. Except as set forth below, owners of
beneficial interests in a global security will not be entitled to have the securities represented by such global security registered
in their names, will not receive or be entitled to receive physical delivery of such securities in definitive form and will not be considered
the owners or holders thereof under the applicable indenture, warrant agreement, purchase contract or unit agreement. Accordingly, each
person owning a beneficial interest in a global security must rely on the procedures of the depositary for the global security and, if
such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights
of a holder under the applicable indenture, warrant agreement, purchase contract or unit agreement. We understand that under existing
industry practices, if we request any action of holders or if an owner of a beneficial interest in a global security desires to give
or take any action which a holder is entitled to give or take under the applicable indenture, warrant agreement, purchase contract or
unit agreement, the depositary for such global security would authorize the participants holding the relevant beneficial interests to
give or take such action, and such participants would authorize beneficial owners owning through such participants to give or take such
action or would otherwise act upon the instructions of beneficial owners holding through them.
Any
payments to holders with respect to warrants, purchase contracts or units represented by a global security registered in the name of
a depositary or its nominee will be made to such depositary or its nominee, as the case may be, as the registered owner of such global
security. None of us, the trustees, the warrant agents, the unit agents or any of our other agents, agent of the trustees or agent of
the warrant agents or unit agents will have any responsibility or liability for any aspect of the records relating to or payments made
on account of beneficial ownership interests in such global security or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
We
expect that the depositary for any securities represented by a global security, or its nominee, upon receipt of any payment of principal,
premium, interest or other distribution of underlying securities or commodities to holders in respect of such global security, will immediately
credit participants’ accounts in amounts proportionate to their respective beneficial interests in such global security as shown
on the records of such depositary or its nominee. We also expect that payments by participants to owners of beneficial interests in such
global security held through such participants will be governed by standing customer instructions and customary practices, as is now
the case with the securities held for the accounts of customers in bearer form or registered in “street name,” and will be
the responsibility of such participants.
If
the depositary for any securities represented by a global security is at any time unwilling or unable to continue as depositary or ceases
to be a clearing agency registered under the Exchange Act, and we do not appoint a successor depositary registered as a clearing agency
under the Exchange Act within 90 days, we will issue such securities in definitive form in exchange for such global security. In addition,
we may at any time and in our sole discretion determine not to have any of the securities of a series represented by one or more global
securities and, in such event, will issue securities of such series in definitive form in exchange for all of the global security or
securities representing such securities. Any securities issued in definitive form in exchange for a global security will be registered
in such name or names as the depositary shall instruct the relevant trustee, warrant agent or other relevant agent of ours. We expect
that such instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial
interests in such global security.
PLAN
OF DISTRIBUTION
We
may sell our securities from time to time through underwriters, dealers or agents or directly to purchasers, in one or more transactions
at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to such prevailing
market prices or at negotiated prices. We may also sell our securities upon the exercise of subscription rights that may be distributed
to security holders. We may use these methods in any combination.
We
will describe the terms of the offering of the securities in a prospectus supplement, information incorporated by reference or any related
free writing prospectus, including:
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the
name or names of any underwriters, if any; |
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the
purchase price of the securities and the proceeds we will receive from the sale; |
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any
underwriting discounts and other items constituting underwriters’ compensation; |
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any
initial public offering price; |
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any
discounts or concessions allowed or reallowed or paid to dealers; and |
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any
securities exchange or market on which the securities may be listed. |
Only
underwriters we name in the prospectus supplement, information incorporated by reference or related free writing prospectus are underwriters
of the securities offered thereby.
The
distribution of securities may be effected, from time to time, in one or more transactions, including:
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block
transactions (which may involve crosses) and transactions on the NYSE American or any other organized market where the securities
may be traded; |
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purchases
by a broker-dealer as principal and resale by the broker-dealer for its own account pursuant to a prospectus supplement; |
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ordinary
brokerage transactions and transactions in which a broker-dealer solicits purchasers; |
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sales
“at the market” to or through a market maker or into an existing trading market, on an exchange or otherwise; and |
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sales
in other ways not involving market makers or established trading markets, including direct sales to purchasers. |
By
Underwriters
We
may use an underwriter or underwriters in the offer or sale of our securities.
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If
we use an underwriter or underwriters, the offered securities will be acquired by the underwriters for their own account. |
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We
will include the names of the specific managing underwriter or underwriters, as well as any other underwriters, and the terms of
the transactions, including the compensation the underwriters and dealers will receive, in the prospectus supplement. |
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The
underwriters will use this prospectus and the prospectus supplement to sell our securities. |
We
may also sell securities pursuant to one or more standby agreements with one or more underwriters in connection with the call, redemption
or exchange of a specified class or series of any of our outstanding securities. In a standby agreement, the underwriter or underwriters
would agree either:
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to
purchase from us up to the number of shares of common stock that would be issuable upon conversion or exchange of all the shares
of the class or series of our securities at an agreed price per share of common stock; or |
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to
purchase from us up to a specified dollar amount of offered securities at an agreed price per offered security, which price may be
fixed or may be established by formula or other method and which may or may not relate to market prices of our common stock or any
other outstanding security. |
The
underwriter or underwriters would also agree, if applicable, to convert or exchange any securities of the class or series held or purchased
by the underwriter or underwriters into or for our common stock or other security.
The
underwriter or underwriters may assist in the solicitation of conversions or exchanges by holders of the class or series of securities.
By
Dealers
We
may use a dealer to sell our securities.
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If
we use a dealer, we, as principal, will sell our securities to the dealer. |
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The
dealer will then resell our securities to the public at varying prices that the dealer will determine at the time it sells our securities.
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We
will include the name of the dealer and the terms of our transactions with the dealer in the prospectus supplement. |
If
we offer securities in a subscription rights offering to our existing security holders, we may enter into a standby underwriting agreement
with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to
purchase on a standby basis. If we do not enter into a standby underwriting arrangement, we may retain a dealer-manager to manage a subscription
rights offering for us.
By
Agents
We
may designate agents to solicit offers to purchase our securities.
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We
will name any agent involved in offering or selling our securities and any commissions that we will pay to the agent in the prospectus
supplement. |
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Unless
we indicate otherwise in the prospectus supplement, our agents will act on a best efforts basis for the period of their appointment. |
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Our
agents may be deemed to be underwriters under the Securities Act of any of our securities that they offer or sell. |
By
Delayed Delivery Contracts
We
may authorize our agents and underwriters to solicit offers by certain institutions to purchase our securities at the public offering
price under delayed delivery contracts.
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If
we use delayed delivery contracts, we will disclose that we are using them in the prospectus supplement and will tell you when we
will demand payment and delivery of the securities under the delayed delivery contracts. |
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These
delayed delivery contracts will be subject only to the conditions that we set forth in the prospectus supplement. |
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We
will indicate in the prospectus supplement the commission that underwriters and agents soliciting purchases of our securities under
delayed delivery contracts will be entitled to receive. |
Direct
Sales
We
may directly solicit offers to purchase our securities, and we may directly sell our securities to institutional or other investors,
including our affiliates. We will describe the terms of our direct sales in the prospectus supplement. We may also sell our securities
upon the exercise of rights which we may issue.
General
Information
Underwriters,
dealers and agents that participate in the distribution of our securities may be underwriters as defined in the Securities Act, and any
discounts or commissions they receive and any profit they make on the resale of the offered securities may be treated as underwriting
discounts and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation described in
a prospectus supplement. We may indemnify agents, underwriters, and dealers against certain civil liabilities, including liabilities
under the Securities Act, or make contributions to payments they may be required to make relating to those liabilities. Our agents, underwriters,
and dealers, or their affiliates, may be customers of, engage in transactions with, or perform services for us in the ordinary course
of business.
Each
series of securities offered by this prospectus (other than common stock) may be a new issue of securities with no established trading
market. Any underwriters to whom securities offered by this prospectus are sold by us for public offering and sale may make a market
in the securities offered by this prospectus, but the underwriters will not be obligated to do so and may discontinue any market making
at any time without notice. No assurance can be given as to the liquidity of the trading market for any securities offered by this prospectus.
Representatives
of the underwriters through whom our securities are sold for public offering and sale may engage in over-allotment, stabilizing transactions,
syndicate short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Over-allotment involves
syndicate sales in excess of the offering size, which creates a syndicate short position. Stabilizing transactions permit bids to purchase
the offered securities so long as the stabilizing bids do not exceed a specified maximum.
Syndicate
covering transactions involve purchases of the offered securities in the open market after the distribution has been completed in order
to cover syndicate short positions. Penalty bids permit the representative of the underwriters to reclaim a selling concession from a
syndicate member when the offered securities originally sold by such syndicate member are purchased in a syndicate covering transaction
to cover syndicate short positions. Such stabilizing transactions, syndicate covering transactions and penalty bids may cause the price
of the offered securities to be higher than it would otherwise be in the absence of such transactions. These transactions may be effected
on a national securities exchange and, if commenced, may be discontinued at any time. Underwriters, dealers and agents may be customers
of, engage in transactions with or perform services for, us and our subsidiaries in the ordinary course of business.
Fees
and Commissions
In
compliance with the guidelines of the Financial Industry Regulatory Authority, or FINRA, the aggregate maximum discount, commission or
agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer will
not exceed 8% of any offering pursuant to this prospectus and any applicable prospectus supplement or other offering materials; however,
it is anticipated that the maximum commission or discount to be received in any particular offering of securities will be less than this
amount.
If
5% or more of the net proceeds of any offering of securities made under this prospectus will be received by a FINRA member participating
in the offering or affiliates or associated persons of such FINRA member, the offering will be conducted in accordance with FINRA Rule
5121.
LEGAL
MATTERS
Certain
legal matters in connection with the securities offered hereby will be passed on for us by Snell & Wilmer L.L.P., Salt Lake City,
Utah, and Porter Hedges LLP, Houston, Texas. Any underwriters will be advised about other issues relating to any offering by their own
legal counsel.
EXPERTS
The
consolidated financial statements of Superior Drilling Products, Inc. (the “Company”) as of December 31, 2022 and 2021 and
for the years then ended, incorporated in this prospectus by reference from the Annual Report on Form 10-K of the Company for the year
ended December 31, 2022, have been audited by Moss Adams LLP, an independent registered public accounting firm, as stated in their report,
which is incorporated herein by reference. Such consolidated financial statements are incorporated by reference in reliance upon the
report of such firm given their authority as experts in accounting and auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution.
The
following table sets forth the various expenses, all of which will be borne by us, in connection with the sale and distribution of the
securities being registered, other than the underwriting discounts and commissions. All amounts shown are estimates except for the Securities
and Exchange Commission registration fee.
| Securities and Exchange Commission registration fee | |
$ | 2,204 | |
| Accounting fees and expenses | |
$ | * | |
| Legal fees and expenses | |
$ | * | |
| Miscellaneous | |
$ | * | |
| Total | |
$ | * | |
*
Estimated expenses are presently not known and cannot be estimated.
Item
15. Indemnification of Directors and Officers.
The
Company’s Articles of Incorporation provide that to the fullest extent permitted by the Company’s bylaws (the “Bylaws”)
or the Utah Revised Business Corporation Act (the “Act”), or any other applicable law, as either may be amended, a director
shall have no liability to the Company or its shareholders for monetary damages for conduct, any action taken, or any failure to take
any action as a director. As permitted by the Act, directors will not be personally liable to the Company or the Company’s shareholders
for monetary damages for any action taken or any failure to take action as a director except liability for (a) the amount of a financial
benefit received by a director to which he’s not entitled; (b) an intentional infliction of harm on the Company or its shareholders;
(c) an unlawful distribution in violation of Section 16-10a-842 of the Act; or (d) an intentional violation of criminal law.
These
limitations of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable
remedies, such as an injunction or rescission.
In
addition, the Bylaws provide that:
●the
Company will indemnify its directors to the fullest extent permitted by the Act, including advancing expenses in connection with legal
proceedings, subject to limited exceptions; and
●the
Company may, to the extent permitted by the Act, by action of its board of directors, agree to indemnify officers, employees and other
agents of the Company and may advance expenses to such persons.
The
Company has entered into indemnification agreements with each of the Company’s executive officers and directors. These agreements
provide that, subject to limited exceptions and among other things, the Company will indemnify each of its executive officers and directors
to the fullest extent permitted by law and advance expenses to each indemnity in connection with any proceeding in which a right to indemnification
is available.
The
Company maintains general liability insurance that covers certain liabilities of its directors and officers arising out of claims based
on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers, or persons who control the Company, the Company
has been informed that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities
Act and is therefore unenforceable.
These
provisions may discourage shareholders from bringing a lawsuit against the Company’s directors for breach of their fiduciary duty,
or may have the practical effect in some cases of eliminating the Company’s shareholders’ ability to collect monetary damages
from its directors and officers. These provisions may also have the effect of reducing the likelihood of derivative litigation against
directors and officers, even though such an action, if successful, might otherwise benefit the Company and its shareholders. Furthermore,
a shareholder’s investment may be adversely affected to the extent the Company pays the costs of settlement and damage awards against
directors and officers pursuant to these indemnification provisions.
Item
16. Exhibits.
| (1) |
We
will file as an exhibit to a current report on Form 8-K (i) any underwriting agreement relating to securities offered hereby, (ii)
the instruments setting forth the terms of any preferred stock, warrants, subscription rights, purchase contracts or units, (iii)
any additional required opinion of counsel as to the legality of the securities offered hereby, or (iv) any required opinion of counsel
as to certain tax matters relative to securities offered hereby. |
| |
|
| (2) |
Filed
herewith. |
Item
17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement;
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i)
If the registrant is relying on Rule 430B:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier
of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii)
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating
to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall
be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated
or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as
to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first
use.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will
be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the city of Vernal, State of Utah, on the 15h day of August, 2023.
| |
SUPERIOR
DRILLING PRODUCTS, INC. |
| |
|
|
| |
By: |
/s/
G. Troy Meier |
| |
|
G.
Troy Meier |
| |
|
Chief
Executive Officer |
POWER
OF ATTORNEY AND SIGNATURES
We
the undersigned officers and directors of Superior Drilling Products, Inc., hereby, severally constitute and appoint G. Troy Meier and
Annette Meier, each of them singly, our true and lawful attorneys with full power to them and each of them singly, to sign for us and
in our names in the capacities indicated below, the registration statement on Form S-3 filed herewith and any and all pre-effective and
post-effective amendments to said registration statement and any subsequent registration statement for the same offering which may be
filed under Rule 462(b) and generally to do all such things in our names and on our behalf in our capacities as officers and directors
to enable Superior Drilling Products, Inc. to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities
and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them,
to said registration statement and any and all amendments thereto or to any subsequent registration statement for the same offering which
may be filed under Rule 462(b).
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/
G. Troy Meier |
|
Chief
Executive Officer |
|
|
| G.
Troy Meier |
|
and
Chairman (Principal Executive Officer) |
|
August
15, 2023 |
| |
|
|
|
|
| /s/
Christopher Cashion |
|
Chief
Financial Officer |
|
August
15, 2023 |
| Christopher
Cashion |
|
(Principal
Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/
Annette Meier |
|
President,
Chief Operating Officer and Director |
|
August
15, 2023 |
| Annette
Meier |
|
|
|
|
| |
|
|
|
|
| /s/
James R. Lines |
|
Director |
|
August
15, 2023 |
| James
R. Lines |
|
|
|
|
| |
|
|
|
|
| /s/
Michael Ronca |
|
Director |
|
August
15, 2023 |
| Michael
Ronca |
|
|
|
|
| |
|
|
|
|
| /s/
Robert Iversen |
|
Director |
|
August
15, 2023 |
| Robert
Iversen |
|
|
|
|
EXHIBIT
INDEX
| (1) |
We
will file as an exhibit to a current report on Form 8-K (i) any underwriting agreement relating to securities offered hereby, (ii)
the instruments setting forth the terms of any preferred stock, warrants, subscription rights, purchase contracts or units, (iii)
any additional required opinion of counsel as to the legality of the securities offered hereby, or (iv) any required opinion of counsel
as to certain tax matters relative to securities offered hereby. |
| |
|
| (2) |
Filed
herewith. |
Exhibit
5.1
|
|
15
West South Temple
Suite 1200
Gateway Tower West
Salt Lake City, UT 84101
801.257.1900
P
801.257.1800
F
|
|
August
15, 2023
Superior
Drilling Products, Inc.
1583
South 1700 East
Vernal,
Utah 84078
Re:
Registration Statement on Form S-3
Ladies
and Gentlemen:
We
have acted as special Utah counsel to Superior Drilling Products, Inc., a Utah corporation (the “Company”), in connection
with its Registration Statement on Form S-3 (the “Registration Statement”), to be filed with the Securities and Exchange
Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
relating to the registration of up to an aggregate of $20,000,000 of: (i) shares of the Company’s common stock, par value $0.001
per share (the “Common Stock”), (ii) shares of the Company’s preferred stock, par value $0.001 per share (the
“Preferred Stock”), (iii) warrants (the “Warrants”) to purchase Common Stock, Preferred Stock,
purchase contracts (the “Purchase Contracts”) or units (the “Units”), or any combination thereof,
(iv) subscription rights (the “Subscription Rights”) to purchase Common Stock, Preferred Stock or other securities,
or any combination thereof, (v) Purchase Contracts, and (vi) Units (each as described in the Registration Statement, collectively the
“Securities”), as such Securities may be issued and sold by the Company from time to time, together or separately
and in one or more series (if applicable), at indeterminate prices.
This
opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
The
Securities are to be sold from time to time pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under
the Securities Act as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”)
and any supplements to such prospectus (each, a “Prospectus Supplement”).
ALBUQUERQUE BOISE DENVER LAS VEGAS LOS ANGELES LOS CABOS ORANGE COUNTY
PHOENIX PORTLAND RENO SALT LAKE CITY SAN DIEGO SEATTLE TUCSON WASHINGTON, D.C.
Superior
Drilling Products, Inc.
August 15, 2023
Page 2
For
the purpose of rendering this opinion, we have made such factual and legal examinations as we deemed necessary under the circumstances,
and in connection with that, we have examined, among other things, originals or copies, certified or otherwise identified to our satisfaction,
of such documents, corporate records, certificates of public officials, certificates of officers or other representatives of the Company,
and other instruments and have made such inquiries as we have deemed appropriate for the purpose of rendering this opinion.
In
our examination, we have assumed without independent verification (i) the legal capacity and competency of all natural persons, (ii)
the genuineness of all signatures, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original
documents of all documents submitted to us as conformed or photostatic copies and the authenticity of the originals of such latter documents,
(v) the valid authorization, execution and delivery of such documents by such persons, (vi) the truth, accuracy and completeness of the
information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed, (vii)
at the time any Securities are sold pursuant to the Registration Statement (the “Relevant Time”), the Registration
Statement and any supplements and amendments thereto (including post-effective amendments) will be effective under the Securities Act
and will comply with all applicable laws, (viii) at the Relevant Time, a Prospectus Supplement will have been prepared and filed with
the Commission describing the Securities offered thereby and all related documentation and will comply with all applicable laws, (ix)
that the Securities will be issued and sold in compliance with applicable U.S. federal and state securities laws and in the manner stated
in the Registration Statement and the applicable Prospectus Supplement, (x) that a definitive purchase, underwriting, subscription, placement
agent or similar agreement with respect to any Securities offered will have been duly authorized and validly executed and delivered by
the Company and the other parties thereto, (xi) that any Securities issuable upon conversion, exchange, redemption or exercise of any
Securities being offered (a “Convertible Security”) will be duly authorized, created and, if appropriate, reserved
for issuance upon such conversion, exchange, redemption or exercise; and (xii) with respect to shares of Common Stock or Preferred Stock
offered, that there will be sufficient shares of Common Stock or Preferred Stock, as applicable, authorized under the Company’s
organizational documents that are not otherwise reserved for issuance. Our opinion stated herein is subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally,
and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). As to any facts material to the opinion
expressed herein which were not independently established or verified, we have relied upon oral or written statements and representations
of officers or other representatives of the Company and others.
Superior
Drilling Products, Inc.
August 15, 2023
Page 3
On
the basis of, and in reliance on, the foregoing examination and subject to the assumptions, exceptions, qualifications and limitations
contained herein, we are of the opinion that:
1.
With respect to any shares of the Common Stock to be offered by the Company pursuant to the Registration Statement, when both: (a) the
board of directors of the Company (the “Board”) has taken all necessary corporate action to authorize the issuance
and terms of the offering of shares of Common Stock and related matters, and (b) certificates representing the shares of Common Stock
have been duly executed, countersigned, registered and delivered or, if issued in book entry form, an appropriate account statement evidencing
shares of Common Stock credited to the purchaser’s account maintained with the Company’s transfer agent for Common Stock
has been issued by said transfer agent, either (i) in accordance with the applicable definitive purchase, underwriting, subscription,
placement agent or similar agreement approved by the Board or (ii) upon the conversion or exercise of any Convertible Security to purchase
Common Stock, in accordance with the terms of such Convertible Security or the instrument governing such Convertible Security providing
for such conversion or exercise as approved by the Board, in each case upon payment of the consideration therefor provided for therein
(not less than the par value of the Common Stock), then the shares of Common Stock will be validly issued, fully paid and non-assessable.
2.
With respect to any shares of any class or series of Preferred Stock to be offered by the Company pursuant to the Registration Statement,
when both: (a) the Board has taken all necessary corporate action to approve the issuance and terms of the applicable class or series
of Preferred Stock, including the adoption of a designation of preferences, limitations and relative rights relating to such shares of
Preferred Stock as required by applicable law (a “Designation”) and the filing of the of Designation as required by
applicable law, the terms of the offering thereof and related matters; and (b) certificates representing the shares of the applicable
class or series of Preferred Stock have been duly executed, countersigned, registered and delivered either (i) in accordance with the
applicable definitive purchase, underwriting, subscription, placement agent or similar agreement approved by the Board or (ii) upon the
conversion or exercise of any Convertible Security to purchase Preferred Stock, in accordance with the terms of such Convertible Security
or the instrument governing such Convertible Security providing for such conversion or exercise as approved by the Board, in each case
upon payment of the consideration therefor provided for therein (not less than the par value of the Preferred Stock), then the shares
of the applicable class or series of the Preferred Stock will be validly issued, fully paid and non-assessable.
3.
With respect to the Warrants to be offered by the Company pursuant to the Registration Statement, when both: (a) the Board has taken
all necessary corporate action to approve the issuance and terms of the Warrants, the terms of the offering thereof and related matters;
and (b) the Warrants have been duly executed and delivered upon payment of the consideration therefor, pursuant to the applicable definitive
purchase, underwriting, subscription, placement agent, warrant or similar agreement duly authorized, executed and delivered by the Company
and a warrant agent, and the certificates for the Warrants have been duly executed and delivered by the Company and such warrant agent,
then the Warrants will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their
terms.
Superior
Drilling Products, Inc.
August 15, 2023
Page 4
4.
With respect to the Subscription Rights to be offered by the Company pursuant to the Registration Statement, when both: (a) the Board
has taken all necessary corporate action to approve the issuance and terms of the Subscription Rights, the terms of the offering thereof
and related matters; and (b) the Subscription Rights have been duly executed and delivered upon payment of the consideration therefor,
pursuant to the applicable definitive purchase, underwriting, subscription, placement agent or similar agreement duly authorized, executed
and delivered in accordance with the terms thereof, then such Subscription Rights will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms.
5.
With respect to the Purchase Contracts to be offered by the Company pursuant to the Registration Statement, when both: (a) the Board
has taken all necessary corporate action to approve the issuance and terms of the Purchase Contracts, the terms of the offering thereof
and related matters; and (b) the Purchase Contracts have been duly executed and delivered upon payment of the consideration therefor,
pursuant to the applicable definitive purchase, underwriting, subscription, placement agent or similar agreement duly authorized, executed
and delivered in accordance with the terms thereof, then the Purchase Contracts will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms.
6.
With respect to the Units to be offered by the Company pursuant to the Registration Statement, when both: (a) the Board has taken all
necessary corporate action to approve the issuance and terms of the Units (including the applicable Securities underlying the Units),
the terms of the offering thereof and related matters; and (b) the Units (and the applicable Securities underlying the Units) have been
duly executed and delivered upon payment of the consideration therefor, pursuant to the applicable definitive purchase, underwriting,
subscription, placement agent or similar agreement duly authorized, executed and delivered by the Company and any applicable unit or
other agents, and the certificates for the Units (including the applicable Securities underlying the Units) have been duly executed and
delivered by the Company and any applicable unit or other agents, then the Units will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms.
Our
opinion that any document is legal, valid and binding is qualified as to:
| |
(a) |
limitations
imposed by bankruptcy, insolvency, reorganization, arrangement, fraudulent conveyance, moratorium or other laws relating to or affecting
the rights of creditors generally; |
| |
|
|
| |
(b) |
rights
to indemnification, exculpation and contribution, which may be limited by applicable law or equitable principles; |
Superior
Drilling Products, Inc.
August 15, 2023
Page 5
| |
(c)
|
general
principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive relief and limitation of rights of acceleration, regardless of whether
such enforceability is considered in a proceeding in equity or at law; |
| |
|
|
| |
(d) |
any
waiver of stay, extension or usury laws or of unknown future rights; and |
| |
|
|
| |
(e) |
any
purported fraudulent transfer “savings” clause. |
The
foregoing opinion is limited to the general corporation law of the State of Utah, including the Utah Revised Business Corporation Act,
and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of any federal
or state securities laws, including the securities laws of the State of Utah, or as to federal or state laws regarding fraudulent transfers.
To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than
the State of Utah, we do not express any opinion on such matter.
The
opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters
expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become
aware of any fact that might change the opinion expressed herein after the date hereof.
We
are furnishing this opinion to the Company solely in connection with the Registration Statement, and it is understood that this opinion
is to be used only in connection with the issuance of the Securities while the Registration Statement is in effect. Copies of this opinion
may not be delivered to any other person or entity without our prior written consent. Notwithstanding the preceding sentence, we hereby
consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the caption
“Legal Matters” in the prospectus included as a part of the Registration Statement. In giving such consent, we do not hereby
concede that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations
of the Commission promulgated thereunder
| |
Very
truly yours, |
| |
|
| |
/s/ Snell & Wilmer, L.L.P. |
| |
Snell
& Wilmer, L.L.P. |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of Superior Drilling Products, Inc. and subsidiaries (the “Company”) of our report dated March 15, 2023,
relating to the consolidated financial statements of the Company appearing in the Annual Report on Form 10-K of the Company for the
year ended December 31, 2022, filed with the Securities and Exchange Commission. We also consent to the reference to us under the heading
“Experts” in such Registration Statement.
/s/ Moss Adams LLP
Dallas, Texas
August 15, 2023
Exhibit 107
Calculation
of Filing Fee Tables
S-3
(Form
Type)
Superior
Drilling Products, Inc.
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered and Carry Forward Securities
| | |
Security Type | |
Security Class Title | |
Fee Calculation or Carry Forward Rule | |
Amount Registered | | |
Proposed Maximum Offering Price Per Unit | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee (1) | | |
Carry Forward Form Type | | |
Carry Forward File Number | | |
Carry Forward Initial effective date | | |
Filing Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |
| Newly Registered Securities |
Fees to Be
Paid | |
Equity | |
Common Stock, par value $0.001 per share | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Equity | |
Preferred Stock, par value $0.001 per share | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Other | |
Warrants | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Other | |
Subscription Rights | |
| |
| | | |
| | | |
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Other | |
Purchase Contracts | |
| |
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Other | |
Units (2) | |
| |
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| | |
| | |
Unallocated (Universal) Shelf (1) | |
- | |
Rule 457(o) | |
| - | | |
| - | | |
$ | 20,000,000 | | |
| .00011020 | | |
$ | 2,204 | | |
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| |
| |
| |
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| | |
Fees
Previously Paid | |
| |
| |
| |
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| | |
| Carry Forward Securities |
| Carry Forward Securities | |
| |
| |
| |
| | | |
| | | |
| | | |
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| | | |
| | | |
| | |
| | |
Total Offering Amounts | | |
| | | |
$ | 20,000,000 | | |
| | | |
$ | 2,204 | | |
| | | |
| | | |
| | | |
| | |
| | |
Total Fees Previously Paid | | |
| | | |
| | | |
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Total Fee Offsets | | |
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| | | |
| | | |
| | | |
| | | |
| | |
| | |
Net Fee Due | | |
| | | |
| | | |
| | | |
$ | 2,204 | | |
| | | |
| | | |
| | | |
| | |
| (1) | The
securities registered consist of $20,000,000 of an indeterminate number or amount of Common
Stock, Preferred Stock, Warrants, Subscription Rights, Purchase Contracts and Units, as may
be issued from time to time at indeterminate prices. In no event will the aggregate initial
offering price of all securities issued from time to time pursuant to this registration statement
exceed $20,000,000 or the equivalent thereof in foreign currencies, foreign currency units
or composite currencies. This registration statement also covers an indeterminate amount
of securities registered hereunder and listed in the “Calculation of Registration Fee”
table above as may be issued in exchange for, or upon conversion or exercise of, as the case
may be, the securities registered hereunder and listed in the “Calculation of Registration
Fee” table above. In addition, pursuant to Rule 416 under the Securities Act of 1933,
as amended (the “Securities Act”), the shares being registered hereunder include
such indeterminate number of shares of common stock and preferred stock as may be issuable
with respect to the shares being registered hereunder as a result of stock splits, stock
dividends, or similar transactions. |
| | (2) | Each
unit will represent an interest in two or more other securities, which may or may not be
separable from one another. |
Table
2: Fee Offset Claims and Sources
| | |
Registrant or Filer Name | | |
Form or Filing Type | | |
File Number | | |
Initial Filing Date | | |
Filing Date | | |
Fee Offset Claimed | | |
Security Type Associated with Fee Offset Claimed | | |
Security Title Associated with Fee Offset Claimed | | |
Unsold Securities Associated with Fee Offset Claimed | | |
Unsold Aggregate Offering Amount Associated with Fee Offset
Claimed | | |
Fee Paid with Fee Offset Source | |
| | Rules 457(b) and 0-11(a)(2) | |
Fee Offset
Claims | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Fee Offset Sources | |
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| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| | |
Rule 457(p) | |
Fee Offset
Claims | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
| Fee Offset Sources | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
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